* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

REVISED July 2, 2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60291

Summary Calendar

FANG CHEN,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A00 040 170

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Fang Chen, a Chinese national, seeks review of the Board of Immigration

Appeals’ final order of removal. That order dismissed her appeal of the

immigration judge’s denial of Chen’s applications for asylum and withholding of

removal. Chen argues that the IJ’s adverse credibility finding is not supported

by the record. Because Chen filed her application for relief in December 2005,

United States Court of Appeals

Fifth Circuit

F I L E D

January 27, 2010

Lyle W. Cayce

Clerk
No. 08-60291

1See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); 8 U.S.C. § 1231(b)(3)(C); REAL ID

Act § 101(h)(2), Pub. L. 109-13, 119 Stat. 302, 305. 

2See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).

3Wang v. Holder, 569 F.3d 531, 538–39 (5th Cir. 2009) (quoting Lin v.

Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)) (internal quotation marks omitted).

4See id.

2

this case is governed by the standards ofthe REAL ID Actfor evaluating witness

credibility in asylum and withholding of removal cases.1 Although Chen applied

for relief under the Convention Against Torture, she has waived that claim by

failing to brief the issue before this court.2

We defer “to an IJ’s credibility determination unless, from the totality of

the circumstances, it is plain that no reasonable fact-finder could make such an

adverse credibility ruling.”3In making his adverse credibility finding, the IJ

noted, among other things, that: (1) Chen’s husband moved to the United States

in 2001, despite her claim that they wanted to have more children at that time;

(2) the forced insertion and continued use of an intrauterine device (IUD)

constituted a major element in Chen’s asylum claim, but she had not yet

removed the IUD at the time of her asylum hearing; (3) her claim that the 2005

flood in China prevented her from submitting additional corroborating evidence

did not explain why she did not submit affidavits from her family members and

friends; and (4) there were many inconsistencies between Chen’s testimony at

the asylum hearing and the information contained in the Form I-213 that was

completed by a border patrol agent shortly after Chen’s arrival in the United

States. Our review of the record and Chen’s arguments shows that the IJ’s

adverse credibility finding warrants deference.4 Although we are not convinced

that all cited inconsistencies were in factinconsistent, we need not be, as the IJ’s
No. 08-60291

5See id.

6Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (internal quotation marks

and citation omitted); see also 8 U.S.C. § 1158(b)(1)(B)(ii) (specifying criteria

allowing petitioner’s credible testimony to constitute sole support for sustaining

burden of proving eligibility for asylum). 

7See Eduard v. Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir. 2004).

3

determination rested on an abundance of evidence that precludes us from saying

“no reasonable fact-finder could make such an adverse credibility ruling.”5

Because Chen’s testimony was the primary evidence offered in support of

her asylum claim, and the IJ found thattestimony less than completely credible,

she has not shown that her evidence was “so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.”6 Because her

asylum claim does not warrant relief, her claim for withholding of removal also

fails.7

Chen’s petition for review is DENIED.